California’s ‘Safe Harbor’ Level For Lead Exposure Will Remain Intact

As a neurotoxin, lead can wreak havoc on the nervous system.

By Peter Berg

Businesses who work regularly with California’s public water supply can breathe a collective sigh of
relief.

On May 2, the Superior Court of the State of California for the County of Alameda issued its order granting final judgment in favor of the California Office of Environmental Health Hazard and Assessment (OEHHA), and upholding the existing “safe harbor” level for lead exposure in the state.

While an appeal may be forthcoming, the world’s strictest environmental regulations related to lead exposure, for now, remain intact and will not become even more stringent.

The Existing Safe Harbor

Readers will recall in early in 2015 a for-profit environmental enforcement group sued OEHHA in state court, seeking to eliminate the existing “safe harbor” limit for lead exposure established for businesses working in California.

Among many other implications, the safe harbor allowed construction companies operating in the state to release water into the ground with a concentration of lead at or below the safe harbor level without incurring potentially massive penalties under California’s Drinking Water and Toxic Enforcement Act of
1986, also known as California’s Proposition 65.

The safe harbor is meant to be something of a sanctuary within a morass of well-intentioned but highly burdensome environmental regulations. Construction businesses operating in California have
relied on the safe harbor level and have struggled to comply with it for more than 20 years.

The 0.5 microgram per day safe harbor level is the strictest in the world and is already 60 times lower than the maximum exposure level permitted by the U.S. Environmental Protection Agency’s current drinking water regulations (set at 30 micrograms per day). It is one one-thousandth of the OSHA-permissible exposure limit of 50 micrograms of lead per cubic meter of air.

Indeed, literature published by the EPA suggests background levels of lead exposure from soil in the United States range from 3 to 6 micrograms per day—meaning the general public may be exposed to six to 12 times the existing safe harbor level from everyday living.

While lead was once used in thousands of consumer products across the world (and still is in some products such as car batteries), in recent years scientists have chronicled the calamitous health effects of lead exposure. Awareness as to those disastrous consequences may now be at an all-time high, as allegations swirl concerning lead contamination in drinking water served to the public in Flint, Michigan.

As a neurotoxin, lead can wreak havoc on the nervous system. Even in very small concentrations, lead is a known carcinogen and can cause birth defects and other reproductive harm.

The Lawsuit

The Mateel Environmental Justice Foundation argued the 0.5 microgram per day safe harbor level was not established by the OEHHA following proper statutory protocol, and thus should be eliminated. Mateel explained that the safe harbor frustrated and unduly complicated its mission to enforce California’s environmental protection laws and reduce the exposure of California residents to lead.

The lawsuit centered on the procedure the OEHHA used to establish the safe harbor level for lead exposure of 0.5 microgram per day. Under California law, the OEHHA was required to set the safe harbor level at a level 1000 times lower than the level at which there was “no observable effect” on human beings, based on evidence and scientific studies similar to those used to list certain
chemicals and compounds as reproductive toxins or carcinogens under California’s environmental regulatory framework.

Simplifying things slightly, rather than calculating its own “no observable effect” level, the OEHHA instead relied heavily on the permissible exposure limit set by the Occupational Safety and Health Administration of 50 micrograms per cubic meter of air. OSHA’s permissible exposure limit was used to calculate a maximum daily exposure of 50 micrograms per day, which was then divided by 1000 to obtain the current safe harbor level of 0.5 microgram per day.

Among other contentions, Mateel argued the OEHHA’s reliance on the OSHA-permissible exposure level
meant the OEHHA did not comply with its own statutory mandate to set the safe harbor at a level 1000 times less than the level at which there is “no observable effect.”

The world’s strictest environmental regulations related to lead exposure, for now, remain intact.

Mateel pointed to statements made in the scientific studies relied upon by OSHA in setting its permissible exposure level, which mentioned quite clearly “there is no evidence of a ‘no effect’ level.” Mateel contended the existing safe harbor level set by the OEHHA was therefore “unscientific and arbitrary” and was not consistent with requirements set forth in California law.

A ruling in Mateel’s favor would have had sweeping effects for businesses operating in California—particularly for those businesses who regularly work with California’s water supply. Purifying contaminated water, especially in large quantities, to such a low concentration of lead is near impossible.

Court Upholds Safe Harbor

The court first explained its task was not to decide whether the OEHHA had come up with the “correct” interpretation of its obligations under applicable regulations, but rather “whether the interpretation offered by the agency is reasonable in light of the regulation’s language and purpose.”

The court concluded the OEHHA’s use of OSHA’s permissible exposure level was in fact reasonable, was consistent with the flexibility built into California’s regulatory framework, and the OEHHA had not acted arbitrarily.

The court noted the studies used by OSHA were of high scientific caliber, regarded as “the best synthesis of theory and actual research data.” Mateel itself did not criticize the science behind those studies, but instead argued that the same data did not support a finding that exposures at 1000 times lower than that level “will have no observable effect.”

However, the court held deference to the OEHHA and the expertise of its scientists was the more appropriate course of action. The court concluded Mateel’s arguments as to the OEHHA’s obligations
under California law were unduly constrained and thus were unconvincing. The court wrote:

In sum, the determination of how to properly set the [safe harbor level] was made by an expert scientific agency reviewing complex scientific data and interpreting its own regulations in light of its scientific expertise, and its decisions were neither arbitrary nor capricious nor entirely lacking in evidentiary support.

While an appeal may follow, the case stands as another example of deference to agencies such as the OEHHA charged with implementing complicated and highly scientific and technical regulatory
programs.

While California’s environmental regulations related to lead exposure will remain the most stringent in the world, businesses can take some solace in the fact they continue to rely on the existing safe harbor level.

Peter Berg has a civil engineering degree from the University of Colorado and works as an associate at Kraftson Caudle, in the Washington, D.C., metro area.